Jelodare Mamaghani v Minister for Immigration & Multicultural Affairs [2001] FCA 1004

FEDERAL COURT OF AUSTRALIA

Jelodare Mamaghani v Minister for Immigration & Multicultural Affairs [2001] FCA 1004 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 Hassanvand v Minister for Immigration and Multicultural Affairs [2001] FCA 1000 AMIR JELODARE MAMAGHANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S145 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S145 OF 2000

BETWEEN: AMIR JELODARE MAMAGHANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 1 AUGUST 2001

WHERE MADE: ADELAIDE (HEARD IN PORT HEDLAND)

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant, Amir Jelodare Mamaghani, be granted leave to appeal. 3. The time within which the applicant, Amir Jelodare Mamaghani may appeal be extended to 14 September 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S145 OF 2000

BETWEEN: AMIR JELODARE MAMAGHANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 1 AUGUST 2001

PLACE: ADELAIDE (HEARD IN PORT HEDLAND)

REASONS FOR JUDGMENT 1 The background to this application, and the general findings concerning it are set out in the reasons for decision in the matter of Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 ("Salehi"). I will not repeat that background or those findings. This matter was heard together with the applications Vahid Hassanvand, Mohammad Akhtarani, Abbas Adel Bahri and Hasan Khalil Isa. The evidence given in each of those matters prior to the date of the order to that effect was also ordered to be treated as evidence in this matter. I have adopted the definitions used in Salehi. 2 The issue now before the Court is whether the application for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") given on 14 November 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Mamaghani being notified of the decision, and the reasons for decision, of the Tribunal affirming the decision of a delegate of the respondent not to grant him a protection visa under the Migration Act 1958 (Cth) ("the Act"). The respondent, by his notice of objection to competency, contends that the application was lodged too late, and that by virtue of s 478 of the Act, it must now be dismissed. 3 Mr Mamaghani arrived in Australia on 1 February 2000. On 8 July 2000 he lodged an application for a protection visa under the Act. On 17 August 2000, a delegate of the respondent refused to grant that visa. On 21 August 2000 Mr Mamaghani applied to the Tribunal to review that decision. On 14 November 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to Mr Mamaghani a protection visa under the Act. 4 Mr Mamaghani acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 14 November 2000. Hence, the period of twenty-eight days thereafter by which the applicant was required by reason of s 476(1)(b) to lodge his application for judicial review of the Tribunal's decision, was 12 December 2000. As noted, his application was in fact lodged on 28 December 2000. 5 Mr Mamaghani was also informed of the Tribunal's decision by letter of 16 November 2000 from the migration agent who had acted for him before the Tribunal. That letter indicated that that migration agent could no longer assist him, and referred him to the Legal Services Commission of South Australia. As it happened, Mr Mamaghani had already applied for legal assistance to that Commission on 15 November 2000. On 22 November 2000 his request for legal aid was refused. 6 He then described his efforts to get from Ms Triplett or her officers the forms required to apply to the Court to review the Tribunal's decision. It is unclear precisely when he commenced doing that, but as his and Mr Zyad's evidence in that respect refers only to contact with Mr Khoshab, I find that he embarked on that process only towards the end of November 2000. He was still well within time to apply to the Court. 7 I accept that from late November 2000 he and others made strenuous efforts to get the forms required, and to get assistance in completing them, through Mr Khoshab. Mr Zyad said that Mr Summeri's incident was prompted by the frustration of not getting those forms. Mr Mamaghani participated in early December 2000 in preparing the list of persons, including himself, who wanted those forms for Mr Khoshab to follow it up. I have referred to the circumstances in which that list came to be prepared in my reasons for decision in Hassanvand v Minister for Immigration and Multicultural Affairs [2001] FCA 1000. By 4 December 2000, Mr Khoshab had those forms. He did not provide them forthwith to those who had requested them, including Mr Mamaghani, because he understood (erroneously) that the twenty-eight day time limit was not critical. In the context of his other extensive duties, and the fact that he did not regard the assistance he might provide in completing those forms as part of his official duties, he did not in the circumstances make the forms available or help to complete them as a priority. 8 In Mr Mamaghani's case there is another unfortunate factor in his application being out of time. On about 6 December 2000 Mr Khoshab did find the time to help complete the application and affidavit. They were duly completed, and Mr Mamaghani understood that they had been sent to the Court. The review application then would have been within time. I accept that, about one week later, Mr Khoshab told him that the form had been incorrectly sent to the respondent rather than to the Court, and I suspect also did not name the respondent, but name the Tribunal as the other party. Mr Mamaghani was asked to sign a blank form, which Mr Khoshab was then to complete in writing using the information on the earlier form. That document is dated 13 December 2000, but it was not lodged until 28 December 2000. By 13 December 2000, the time limit had expired. I do not fully comprehend what was wrong with the first document, and Mr Khoshab cannot fairly be criticised given his training for any such error (if indeed it was his error). He did recall that he had to change from naming the Tribunal as respondent to that of the present respondent. But, from Mr Mamaghani's perspective, he had completed and signed an application for review and it had been sent to the Court within time. The cause of that not happening lies elsewhere than with Mr Mamaghani. 9 In my judgement, in his circumstances, Mr Mamaghani did all that he could reasonably have been expected to have done to lodge with the Court, within time, an application to review the Tribunal's decision. 10 Despite those findings, the view I have taken of the scope and effect of s 478(1)(b) and (2) of the Act must result in this application being dismissed. I so order. To the extent necessary I give leave to appeal from this decision. I also extend the time by which any appeal from this decision may be instituted to 14 September 2001. I make no order as to the costs of this application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield .